ALJ Issues Decision in Gurinder S. Sandhu dba Sandhu Poultry and Farming, Case No. 2012-CE-010-VIS
On February 20, 2014, Administrative Law Judge (ALJ) Douglas Gallop issued his decision in the above-entitled case.
The complaint alleged that Respondent violated section 1153(a) of the Agricultural Labor Relations Act (ALRA) by discharging Elvia Hernandez for engaging in protected concerted activity. Respondent contended that Hernandez quit over a pay dispute. The ALJ held that Respondent unlawfully discharged Hernandez when she concertedly protested a change in work assignments and associated issues, such as show-up pay, gasoline expenses and payment for the work performed that week.
The ALJ issued the usual cease and desist and notice-posting orders; however, the ALJ found that Respondent made a valid offer of reinstatement for Hernandez to the Board agents investigating the case, and the offer was related to her. Upon her refusal of the offer, Respondent’s backpay liability terminated. The ALJ also rejected General Counsel’s argument, that Hernandez’s backpay continued after she refused the offer, because she was privileged to reject it, due to Respondent’s abhorrent working conditions. The ALJ found that this remedy is probably not available under the ALRA and, even if it is, there was insufficient evidence to show that reinstatement and backpay were not appropriate in this case. The ALJ further denied, as a remedy, that Respondent’s supervisors undergo sexual harassment training, to be conducted by Board agents. The ALJ held that even if Respondent had engaged in such conduct, this remedy is not within the mandate of the ALRA and, therefore, the Board is not authorized to order such training.
Governor Brown Announces Appointment of William B. Gould IV to ALRB
On February 19, 2014, Governor Edmund G. Brown, Jr. announced the appointment of William B. Gould IV as member and chair of the Agricultural Labor Relations Board effective March 18, 2014.
Mr. Gould has been Charles A. Beardsley professor of law, emeritus at Stanford Law School since 2002, where he has held multiple positions since 1972, including professor of law. He was chairman of the National Labor Relations Board from 1994 to 1998. Mr. Gould was a visiting professor of law at Harvard Law School from 1971 to 1972, professor of law at Wayne State University Law School from 1968 to 1972 and a lawyer at Battle Fowler Stokes and Kheel from 1965 to 1968. He was an attorney-advisor for the National Labor Relations Board from 1963 to 1965 and assistant general counsel for the United Automobile Workers from 1961 to 1962. Mr. Gould is a member of the National Academy of Arbitrators. He earned a Bachelor of Laws degree from Cornell Law School.
ALRB Sacramento Headquarters Office New Location
The Agricultural Labor Relations Board's Sacramento Headquarters Office moved to a new location effective May 1, 2013. The office is now located at 1325 J Street, Suite 1900, Sacramento CA 95814-2944, across from the Sacramento Convention Center and near the Sheraton Hotel. Telephone and fax numbers remain the same.
ALJ Issues Decision in Kawahara Nurseries, Inc., Case Nos. 2011-CE-004-SAL, et al.
On January 14, 2014, Administratie Law Judge (ALJ) Douglas Gallop issued his decision in the above-entitled case.
The original charges alleged that Respondent refused to rehire three employees from layoff, in retaliation for their assistance to the UFW during an election campaign. After an amended charge, and additional allegations not contained in any charge, the complaint alleged that Respondent unlawfully laid off and refused to rehire 14 workers for their union support, and also refused to rehire two of them because they testified for the UFW in a challenged ballot hearing. The ALJ found that the additional allegations were closely related to the original charges, but a majority of the layoff allegations were untimely, because those layoffs took place more than six months prior to the filing and service of the original charges.
On the merits, the ALJ dismissed the layoff allegations. Respondent laid off 60 bargaining unit employees on various dates in 2010. General Counsel did not contest 46 of these layoffs, but contended that the 14 others were selected for layoff based on union considerations. The layoffs took place at least six months after Respondent became aware of the workers’ support for the UFW, and several known key UFW supporters were not laid off. The ALJ, in addition to the statute of limitations issue, held that General Counsel failed to establish that prohibited considerations were a motivating factor in these layoffs. Rather, Respondent selected workers for layoffs based on its staffing requirements, and the comparative ratings assigned to them by their supervisors in job performance evaluations, along with their disciplinary histories.
The ALJ found that Respondent violated section 1153(a) and (c) by refusing to rehire five of the alleged discriminatees. These workers applied for rehire in positions they were qualified to perform, at a time Respondent was hiring. Respondent presented false, shifting and unsubstantiated defenses to these allegations, and did not even consult with the workers’ former supervisors, before refusing to rehire them. It had previously relied almost exclusively on the supervisors’ employee ratings in selecting who would be laid off. The ALJ found that Respondent additionally violated section 1153(a) and (d) by refusing to rehire two of these employees, who had testified in the challenged ballot hearing shortly before they applied for rehire.
The ALJ dismissed the remaining refusal to hire allegations, because all but one of these other employees failed to apply, and under the facts presented, that element of the prima facie case could not be waived. The ALJ dismissed the allegation concerning the other employee, because his application was ineffective. The employee carelessly left his application on the floor in front of the manager’s office, and he never received it.
Office of Administrative Law Approves Regulations To Implement Senate Bill 126
On May 2, 2012, the Office of Administrative Law (OAL) approved the regulations adopted by the ALRB on April 18, 2012, implementing Senate Bill 126 and filed the approved regulations with the Secretary of State. OAL also granted the ALRB's request that the regulations go into effect immediately upon filing, therefore the regulations are now in effect. On April 18, 2012, the Agricultural Labor Relations Board (ALRB or Board) adopted regulations to implement Senate Bill 126. That bill made various changes to the Agricultural Labor Relations Act. The Board had previously held a public hearing on January 20, 2012 on the proposed regulations, hearing oral comments and accepting additional written submissions. At its scheduled February 1, 2012 public meeting the Board voted to adopt the regulations with what were considered nonsubstantive changes in response to the public comment received. While the proposed regulations were pending review by the OAL, it came to the Board’s attention that some of the changes arguably could be termed “substantive” and thus may have required a 15-comment period. Accordingly, in order to ensure complete compliance with the letter of the rulemaking requirements of the Administrative Procedure Act (Gov. Code § 11340, et seq.), on March 21, 2012 the Board withdrew the rulemaking file from OAL and rescinded its February 1, 2012 adoption of the proposed regulations. The Board then issued a 15-Day Notice providing the public the opportunity to submit comment on the changes made. No comments were received.
Subsequent Histories Table
The Subsequent Histories Table has been updated to include Board decisions through Volume 38 (2012). The updated pages are page 40 and 41.
See Subsequent Histories Table for updated page.
2010 and 2011 Case Digest Supplements
The supplements to the ALRB Case Digest for Volume 36 (2010) and Volume 37 (2011) can be used in conjunction with the digest issued in January of 1994 and the earlier supplements previously issued.
Case Digest Merged
The Case Digest and its supplements through 2011 have been merged into one document.
See ALRB Case Digest.